IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
ON THE 14TH DAY OF DECEMBER, 2010
SUIT NO. NIC/ LA/21/2009
CITATION: NIC (2010) 12 LLER 2
Hon. Justice B. B. Kanyip
Hon. Justice O. A. Obaseki-Osaghae
Hon. Justice J.T Agbadu Fishim
LAGOS SHERATON HOTEL & TOWERS
HOTEL & PERSONAL SERVICES SENIOR STAFF ASSOCIATION
Andy Akporugo Jr., O.E Oku, A.A Jande, for the applicant
Uche Wisdom Durueke, for the respondent for the defendants
This is a summons on notice for interpretation dated 17th July 2000 brought by the applicant pursuant to section 15(1)(b) of the Trade Disputes Act Cap. T8 LFN 2004, Order 30 Rules 1 and 4 of the National Industrial Court Rules 2007 and under the inherent jurisdiction of the court seeking for the following:
1. An order interpreting the judgment of this court delivered on the 14 day of July 2009 particularly the court’s following orders at page 15 thereof: (i) That the respondent/cross-appellant shall pay to Mr. Dele Shodeke, Mr. Clement Etong, Mr. Chuks Uzoelurn and Mr. Ashishana Oguma their respective salaries and allowances from April 15, 2005 to the date of this judgment as damages for wrongful termination of their appointment and for the failure to observe the rules of fair hearing and breach of section 36(1) of the 1999 Constitution.
(ii) That additionally, the respondent/cross-appellant shall pay Mr. Dele Sodeke his one month salary in lieu of notice together with all other entitlements due to him which he did not collect.
to determine the following questions:
a. Whether by the Court’s order, the date of the termination of the employment of the appellant/cross-respondent/respondent remains the date on their letters of termination, i.e. the 15th of April 2005.
b. Whether by the Court’s order, the terminal benefits (gratuity, etc) payable to the
appellant/cross-respondent/respondent are those as were due to the appellants as at the date of the
termination of their employment as stated in their letters of termination, i.e. the 15th April 2005.
c. Whether by the Court’s order, the respondent/cross-appellant/applicant is required to pay salaries to Mr. Dele
Shodeke, Mr. Clement Etong, Mr. Chuks Uz.oelum and Mr. Ashishana Oguma from 15th April 2005 to 14th July, 2009, the date of the judgment.
d. Whether the terms ‘salaries and allowances’, are terms known to any relationship except that of an employment contract.
e. Whether the Court’s order for payment of ‘salaries and allowances’ does not imply the continuation of the
appellants’ employment during the period stipulated for the payments of salaries and allowances.
f. Whether the court’s order can be interpreted to require the respondent/cross-appellant/applicant to pay salaries and wages to the appellant/cross-respondent/respondent from the date of the termination of their employment via the letters of 15th of April 2005 up till judgment in the face of its finding that the appellants are not entitled to reinstatement.
g. Whether the orders of the court do not amount to reinstatement of Mr. Dele Shodeke, Mr. Clement Etong, Mr. Chuks Uzoelum and Mr. Ashishana. Oguma.
h. Whether the court having found that the termination was wrongful on account of lack of fair hearing, the court’s order can be interpreted to grant as damages to the appellant salaries and allowances from 15th April 2005 until 14th July, 2009, the date of judgment.
i. Whether the Court’s judgment can be interpreted to mean that Mr. Clement Etong, Mr. Chuks Uzoelum and Ashishana Oguma having collected their terminal benefits and signed for same as their full and final entitlement, they are still by the judgment entitled to be paid salaries and allowances in addition from 15th April 2005 to 14th July, 2009, the date of the judgment.
2. An order setting aside the said court’s judgment being reliefs which the court has no jurisdiction to grant, and thus a nullity to the extent of overreaching the court’s jurisdiction.
3. An order staying the execution of the judgment of the court delivered on the 14th July 2009 pending determination of the reliefs sought in this motion.
And such further or other orders as the court may deem fit to make in the circumstances of this case.
The summons is supported by a 10-paragraphed affidavit sworn to on the 17th July 2009 by Uwadiale Onobun, a solicitor in the firm of G. M. Thru & Co. Attached to the affidavit is the judgment of this court delivered on July 14, 2009 which is marked Exhibit A. In reaction the respondent filed a 21-paragraphed counter-affidavit sworn to by Comrade Gbenga Ishola, a trade unionist, on the 25th August 2009. The respondent also tiled a motion on notice dated 14th August 2009 praying for an order that the applicant deposit the judgment debt in an interest yielding account with First Bank Nig. Plc or any other reputable bank in the country pending the determination of the applicant’s summons on notice for interpretation. Both counsel agreed that the two applications should be taken together and that written addresses be filed in respect of both applications. Parties filed and served their written addresses in respect of the summons on notice for interpretation only, whereupon the matter proceeded to hearing. The applicant’s written address is dated the 16th November 2009 and tiled the same day. The respondent’s written arguments is dated 30th January 2010 but filed on the 10th March 2010. The applicant’s reply on points of law is dated 22nd March 2010 and filed on the 25th March 2010. Counsel to both parties adopted their written address and relied on all the processes filed.
The applicant’s reason for this application and the prayers it is seeking as set out in its summons is predicated upon the following fact deposed to in paragraph 4 of the affidavit in support which is reproduced as follows:
4. That the respondent/cross appellant/applicant does not understand the purport of the judgment and intend to contest same.
The applicant’s counsel began his argument by referring to the two orders of the court already reproduced above. He argued that the ordinary meaning of the words used in the orders cannot be the true intention of the court as they are ambiguous, vague, illogical, contradictory, absurd and down-right illogical and submitted that the ordinary meaning, purport or connotation of the words seems to be that the applicants shall; be required to pay to the respondents their respective salaries and allowances from April 15, 2005 up to the date of the judgment. That the said payment of salaries are from the words meant as damages and appear to have been awarded as a remedy for at least four separate claims or as four separate and distinct remedies which are wrongful termination of appointment, failure to observe rules of fair hearing, breach of section 36(1) of the 1999 Constitution and for stigmatizing the character of the respondent’s members
whose employment was terminated when read along with the position of the court in the 2nd paragraph on page 14 of the judgment.
Counsel submitted further that the meaning would have been different if the court had simply granted damages for wrongful termination of their appointment “by reason of/or on account of failure to observe the rules of fair hearing” while not bothering itself with the matter of a supposed breach of section 36(1) of the Constitution which this court is not empowered to do anything about. That the words ‘and for’ and ‘and’ used in the judgment connote the distinctive disjunctive of ‘in addition to’ and creates a separate leg for damages or a separate set of damages each time it is used. The applicant’s counsel then went on to analyze what he termed to be four ‘particulars of contradiction and/or illogicality of that interpretation.’ He contended firstly that whereas the court had held that the claim for reinstatement fails, it also held that the cross-appeal seeking an order upholding the termination of employment of the respondent’s members also fails. That by common sense interpretation, if the termination is not upheld, it means it is rejected and accordingly the employment is deemed to continue.
Secondly, that since the court held that the termination is directly connected to the recommendations of the disciplinary committee whose proceedings the court held to he “null and void”, by common sense interpretation and on the authority of UAC v. Mcfoy  AC 152 at 160 and the definition of “nullity” in the 6th edition of the Blacks Law Dictionary, the termination of employment having been found to be void is ineffective to terminate the employment and thus the employment continues and the affected employees are deemed reinstated. Thirdly, that the order to pay salaries and allowances from the 15th April 2005 until judgment by reason of common sense and in law suggests the continuation of employment and thus reinstatement of the respondent’s members which is in contradiction with the court’s clear claim that the employees cannot be reinstated. The applicant’s counsel then proceeded to state that ‘salary’ is a simple English word only known to subsisting contracts referring to the definition in Blacks Law Dictionary, 6th edition which is “a reward or recompense for services performed,’ the 6th edition of the Oxford Advanced Learners Dictionary page 1039 and Texaco Nig. Ltd v.
Kehinde  6th NWLR (Pt. 708) 224 at 242. Fourthly that the court’s order that Mr. Dele Sodeke should be paid his one month salary in lieu of notice and other entitlements suggests that the terminations are meant to stand because the alternative will be to suggest that Mr. Sodeke’s employment continues and was only terminated by this court at the date of judgment which would be ludicrous.
The applicant’s counsel then proceeded to itemise what he termed as ‘particulars of the illegality of that interpretation’. He argued that by appearing to grant damages separately for breach of fair hearing and section 36(1) of the Constitution together with the court’s words that “such wrongful termination…on the grounds of unsubstantiated fraud carries with it a stigma on the character of each of the four affected persons for which they shall be entitled to substantial damages far beyond one month’s salary in lieu of notice”, even though the respondent never instituted an action in libel nor under the Fundamental Right (Enforcement Procedure) Rules 1979 for the protection of their human rights against the applicant, the court went clearly outside and ultra vires its jurisdiction contained in section 7 of the National Industrial Court Act 2006. He submitted that the court purports to or by default grant a relief for a supposed tort of defamation or stigmatization of character, which is a matter strictly “within the purview of the law of libel in a labour suit”. That the Supreme Court has held in the case of Katto v. CBN  6 NWLR (Pt. 607) 390 at 410 that a claim for stigmatization, humiliation or embarrassment has no place in a claim for breach of contract of employment.
The applicant’s counsel further submitted that in granting a relief for a supposed infraction of a fundamental rights provision of the Constitution, this court went outside its jurisdiction as it is not empowered to grant an award to remedy a breach of a constitutional right to fair hearing. That a relief for the common law concept of breach of the rules of natural justice was never raised as a separate claim by the respondent and that this court may hold a termination of employment wrongful on account of breach of fair hearing but it can only grant general damages for such wrongful termination and not for breach of fair hearing in addition to damages for wrongful termination. Counsel went further to submit that this court knowingly awarded special, exemplary or aggravated damages even though it was never claimed or proved by the respondent. He claimed that the court discountenanced the law on the calculation of general damages accruable in wrongful termination of employment, citing Katto v. CBN, supra, Chufovumah v. Shell BP  4 NWLR (Pt. 289) 522 at 538 para D – G, Nitel Plc v. Ocholi  10 NWLR (Pt. 720) 188 at 220 para A – D, Opuo v. NNPC  14 NWLR (Pt. 734) 552 at 576 – 577 para H – A and Nigeria Produce Market Board v. Adewunmi  7 NSCC 662. He also referred to the cases of Co-operative Development Bank Plc v. Joe Golday Co. Ltd  14 NWLR (Pt.
688) 506 at 555 – 556 and Oceanic Bank v. G. Chitex Ltd  6 NWLR (Pt. 661) 464 at 478 for the definition of general damages and submitted that on the doctrine of remoteness of damage the damages awarded cannot be said to be general damages of any kind, citing G. Chitex Industries Ltd v. Oceanic Bank International Nig. Ltd  14 NWLR (Pt. 945) 392 for the definition of the term ‘remoteness of damage’.
He submitted that further payment of salary in lieu of notice is the damage known to law to adequately and sufficiently compensate a claimant for wrongful termination of employment, citing SS Co. Ltd v. Afropak Nig. Ltd  18 NWLR (Pt. 1118) 77 at 108 – 109 para. H – D, Texaco (Nig) Ltd v. Kehinde  6 NWLR (Pt. 708) 224 at 242 para. D – G, Ezekiel v. Westminister Dredging Ltd  9 NWLR (Pt. 672) 248 at 262 para. C – H. That the court awarded exemplary damages which is not provided by statute in private employment cases. He cited Odiba v. Muemue  10 NWLR (Pt. 622) 174, Eliochin v. Mbadiwe  1 NWLR (Pt. 14) 47 and Alele Williams v. Sagay  5 NWLR (Pt.
396) 441 for the definition of exemplary damages and submitted that this court has no jurisdiction to grant substantial damages from the legal limits of compensation. It has, therefore, granted damages ultra vires its powers.
The applicant’s counsel stated that the Industrial Arbitration Panel (IAP) did not grant general damages and this was never challenged by the respondent. That general damages is supposed to be damage suffered as at the date of and directly by reason of the wrong or breach and cannot include damage suffered after the judgment of a trial court which is being appealed. That this court has no jurisdiction to grant damages after the Industrial Arbitration Panel award since commonsensically the applicant cannot be held responsible for any injury or damage suffered when both parties had legitimately engaged the legal process. He argued that the damages awarded are inchoate and indeterminable as there is no evidence whatsoever on what sums were due to the concerned employees as salaries. That the court has granted double compensation for the respondent’s members by granting damages for wrongful termination and special damages in terms of payment of salaries and allowances from April 15 2005 till judgment.
The applicant’s counsel also submitted that the court in granting damages of salaries up to judgment in the face of clear documentary evidence that the affected employees received their terminal benefits, this court has set up a presumption of falsehood or invalidity against the applicant when there was no evidence by the respondents denying that they signed in full and final settlement of their claims. lie referred to section 132 and 77 of the Evidence Act and submitted that the court’s finding that the fact that three of the affected staff collected their salary in lieu of notice does not mean that they consented to the infringement of their constitutionally guaranteed right of fair hearing misapprehends the issues as it concerns itself with the matter of accrual of rights instead of waiver of right. lie argued that the court seems to be suggesting that a ‘constitutional right’ is uncompromisable and thus at all times enforceable irrespective of the attitude of the holder of the right. That this is certainly not the law.
The applicant’s counsel also submitted that the judgment of this court transcends the limits imposed by law particularly those parts of the judgment given without jurisdiction and are a nullity. That a very significant part of the judgment of this court was given without jurisdiction and is outside the provision of law and time tested conventions of judicial practice and against the doctrine of stare decisis. That the doctrine of stare decisis does not permit this court to ‘pick and choose which authority it fancies’. He stated that this court has no jurisdiction to entertain and remedy a claim in libel, award damages for breach of fundamental human rights under the fundamental right enforcement procedure rules 1979, no jurisdiction to go outside the doctrine of stare decisis and rely on the judgment of the Court.of the appeal in the case of British Airways v. Makanjuola  8 NWLR (Pt. 311) 276, which according to him, he knows as a fact that the Court of Appeal gave ‘in ignorance’ of the decision of the Supreme Court in Ckukwuma v. SPDC  4 NWLR (Pt. 289) 512. That the Chukwuma v. SPDC case was also cited before the Industrial Arbitration Panel and this court is prevented from discountenancing it by the doctrine of stare decisis, citing Robinson Nwangwu v. Ukach-ukwu  6 NWLR (Pt. 662) 674 at 690. He submitted that the Supreme Court decision in the case of Adigun v. A.G. Oyo State  8 NWLR (Pt.
53) 678 at 721 in which the applicable principles to the right to fair hearing and when a remedy can be granted was enunciated and which this court followed in applying the principles of natural justice in this case is inappropriate and does not provide direct authority to contradict Chukwuma v. SPDC, supra. The applicant’s counsel finally submitted that the parts of the judgment given without jurisdiction are null and void, citing Sken Consult v. Ukey  1 SC 6, Oshatoba v. Olujintan  5 NWLR (Pt. 655) 159 at 169, Madukolu v. Nkemdilim  2 SCNLR 341. He finally urged the court to set aside its judgment delivered on the 14th July 2009.
The learned counsel to the respondent began by stating that aside from paragraph 4 of the applicants affidavit in which it states its intention to contest the judgment, the other averments in the affidavit in support are in respect of the applicant’s prayer for stay of execution of the judgment and, therefore, irrelevant to this notice for interpretation, lie thereafter referred to paragraph 15 of the respondent’s counter-affidavit in which the respondent’s position is stated as follows:
That there is no ambiguity in the judgment of this court in the appeal between the parties delivered on the 14th July, 2009.
The respondent’s counsel submitted that the applicant’s counsel did not raise any decipherable issue for determination in his written address as required by Order 20 Rule 2(iii) & (iv) of the Rules of this court. He submitted that the failure of the applicant to raise any issue for determination in its written address has rendered the summons on notice for interpretation incompetent and should be discountenanced together with the arguments advanced. He further submitted that the appellate courts’ Rules of Court provide that issues for determination are to be raised in the briefs of argument and that the position of the law today is that a brief filed without issues for determination is incompetent. The respondent’s counsel then stated that in case the court refuses to grant the prayer that the applicants written address is incompetent, he proposes to raise the following issues for the determination of this court which are:
1. Is it proper for the respondent/cross appellant/applicant to have brought its Notice for Interpretation of the
judgment of this court in Appeal No. NIC/972008 as Appeal No. NIC/9/2008?
2. Does the Notice for Interpretation not amount to asking this court to sit on appeal over its final and considered judgment in Appeal No. NIC/9/2008?
3. Is there any fact in the applicant’s affidavit to support the summons?
4. Is there any ambiguity in the judgment of this court delivered on 14th July 2009 in Appeal No. NIC/9/2008?
5. Was this court lacking in jurisdiction when it heard and delivered its judgment in the Appeal and the Cross-Appeal No. NIC/9/2009?
6. Pursuant to the National Industrial Court Act 2006, has this court the power to make the order(s) it made in Appeal No. NIC/9/2008?
Learned counsel to the respondent began by contending that this application for interpretation is academic, speculative, vexatious and craftily brought to deprive the respondent and its four members of the fruit of the judgment in the appeal decided on the merit. That after the court delivered its judgment in Appeal No. NIC/9/2008 on 14th July 2009 it became functus officio and the said Appeal No. NIC/9/2008 no longer exists in the cause list of this court. He submitted that the Notice for Interpretation not being an appeal from an award of the Industrial Arbitration Panel (IAP) nor an interlocutory application in Appeal No. NIC/9/2008 or a specie of an action provided for in the National Industrial Act 2006 or the National Industrial Court Rules 2007, it ought to be brought as a new suit with its own suit number and the applicant stated before any other party. He referred to section 54 of the National Industrial Court Act 2006 which, defines an action as a civil proceeding commenced by writ or in any other manner prescribed by the rules of court. He argued that the applicant’s summons on notice for interpretation is not a writ or complaint or application for Judicial Review which are provided for under the National Industrial Court Rules.
The respondent’s counsel also submitted that the applicant’s prayer that this court set aside its judgment is not provided in the National Industrial Court Act or National Industrial Court Rules. That the summons on notice for interpretation is hinged on section 15(l)(b) of the Trade Disputes Act LFN 2004 which is an earlier legislation to the National Industrial Court Act 2006. That by section 54(4)(c) of the National Industrial Court Act, the Trade Disputes Act under which this summons on notice for interpretation is brought is subject to the National Industrial Court Act as it is to be construed with such modifications as may be necessary to bring it into conformity with the provisions of the National Industrial Court Act. Counsel argued that the Trade Disputes Act cannot effectively provide for a procedure that will derogate with the status and spirit of the National Industrial Court Act as the National Industrial Court is created as a superior court of record not given power to set aside its final judgment. He submitted that the combined reading of sections 8(a) and 7(4) of the National Industrial Court Act is that the power to set aside a judgment is available when it is hearing an appeal under subsection (4) of section 7 and not its final judgment. That the summons for notice for interpretation is not an appeal from an arbitral tribunal neither was it brought during the hearing of the appeal in NIC/9/2008 and, therefore, this court will be acting illegally in granting the applicant’s prayers when it has no powers to set aside its final judgment.
The respondent’s counsel further submitted that it is trite law that where the provisions of an earlier legislation and that of a later legislation are in conflict, that of the later legislation prevails. He argued that section 15(1) of the Trade Disputes Act provides for interpretation in respect of a binding judgment and not for the setting aside of the judgment of this court. That the applicant in seeking that the final judgment of this court be set aside means that he has not accepted the judgment of this court as binding on it and cannot bring an application, for the interpretation of the judgment which will be contrary to section 15(1) of the Trade Disputes Act. Learned counsel argued that by the provision of section 15(l)(b) of the Trade Disputes Act 1990, an application for interpretation is only possible if, any question arises for interpretation which means that the purpose of an application for interpretation is to clear grey areas in the implementation or observance of a judgment of this court but not to challenge or cause the matter to be reheard.
He submitted that the summons on notice for interpretation is an originating action which should be brought independently with its own suit number and the party seeking for the interpretation listed first on the process as applicant which is not the position in the present matter. That this notice for interpretation wherein the Hotel and Personal Services Senior Staff Association is stated as if it is the party seeking the interpretation, is incompetent, an abuse of process and should be dismissed.
On issue 2, the respondent’s counsel submitted that the summons on notice for interpretation amounts to asking this court to sit on appeal over its final judgment. That the summons notice which is brought pursuant to the Trade Disputes Act is a substantive law and not a procedural law and, therefore, the reference to Order 30 Rules 1 & 4 of the National industrial Court Rules 2007 is irrelevant as Order 30 Rules 1 & 4 refers to stay of execution and not interpretation action. lie argued that section 15(l)(b) of the Trade Disputes Act is a restrictive provision only activated when ‘a question arises as to interpretation’ of a judgment. That common sense indicates that a question will arise for interpretation when such a judgment is being implemented and not when there is no desire or attempt to implement the judgment by one of the parties. He stated that there is no iota of evidence of any attempt by the applicant to comply with or implement the judgment referring to paragraph 4 of the applicant’s affidavit in support of the summons on notice for interpretation and as such there is no question in controversy between the parties on the implementation. He referred to the Blacks Law Dictionary 6th Edition at page 1259 for the definition of question’.
The respondent’s counsel stated that the applicant has not referred to any authority, statute or case law upon which this court can set aside its final judgment given within jurisdiction. That the substance of the judgment of this court is the payment of salaries and allowances of the four members of the respondent from April 2005 to the date of the judgment and the applicant knows the salaries of these four staff and their allowances. He submitted that the condition precedent for bringing an application for interpretation is that the applicant must show that it has accepted the award or judgment of this court and that where there is a condition precedent, failure to satisfy this statutory provision renders the application null and void. He cited Madukolu v. Nkemdilim  SCNLR 341, 1 ANLR (Pt. 4) 587 and also referred to section 15(2) of the Trade Disputes Act, which provides that the decision on a question for interpretation “shall be deemed to form part of the original award and have effect accordingly”.
The respondent’s counsel submitted that the applicant has attacked the entire judgment as being wrong and, therefore, should be set aside which is not the purpose of a Notice for Interpretation. That this action by the applicant is full of utter spite for the judgment of this court and a clear desire by the applicant not to obey it. He urged the court to dismiss the summons on notice for interpretation for being incompetent, speculative and vexatious.
Issues 3, 4 and 5 were argued together by the applicant’s counsel. He submitted that the orders contained in page 15 of the judgment are not illegal but lawful orders made with jurisdiction and ought to be obeyed by the applicant. That the refusal of the court to uphold the termination means they are nullified thereby restoring the status quo of the four staff to receive their salaries and allowances as staff and the court’s refusal to reinstate the respondents members is simply a way of ensuring equity in the matter. He submitted that section 14 of the National Industrial Court Act allows this court to grant all such remedies any of the parties may be entitled to and that even if the reason or law referred to by this court for granting the orders is wrong, it is not enough to deny the four affected staff the fruits of the judgment or make it one given without jurisdiction. He cited A Mhya v. Abdul Mshelizh & ors  19 WRN 128 at 158. and AIC Ltd v. NNPC  41 WRN 1 at 44-45.
Learned counsel to the respondent submitted that the applicant’s counsel complaint is basically as to language and form of the judgment which are not questions for interpretation. lie further submitted that for a judgment to be set aside or amended the following conditions must be present: a clerical error or mistake arising from accidental slip or omission which requires correction, a judgment obtained in default of appearance of a party or failure to file pleadings by a party, a judgment obtained as a result of fraud or misrepresentation practiced by one of the parties, or where a court assumed jurisdiction over a matter it has no jurisdiction and goes on to give judgment on it. He submitted that none of these conditions is present and this Notice for Interpretation is brought to irritate the respondent and its members as the applicant did not deny or controvert the respondent’s deposition that the notice is brought to hurt the respondent and its members and satisfy the pride and ego of the General Manager of the applicant hotel.
The respondent’s counsel then went on to review the two cases cited by the applicant’s counsel on jurisdiction, and submitted that the cases of Skenconsult Nig. Ltd v. Ukey  1 SC 6 and Oshatoba v. Oluritan  5 NWLR (Pt.
655) 159 at 169 are not applicable and do not support the applicant’s case. He submitted that the judgment of this court was based on an appeal and cross-appeal by the parties which was referred to this court by the Minister for Labour pursuant to his powers under the Trade Disputes Act after the parties each filed an objection to the award of the Industrial Arbitration Panel. The respondent’s counsel further argued that where a party says that a court acted without jurisdiction, the onus is on that party to establish it and that the applicant has not referred to any provision of the National Industrial Court Act that disqualified it from making the orders it is complaining of.
On the issue of award of damages raised by the applicant’s counsel, the respondent’s counsel submitted that it was not part of the judgment as the court never awarded damages to the four staff. That the court held the termination of their appointments wrongful on the ground of denial of fair hearing but did not want to reinstate them, instead it ordered that they be paid their salaries and allowances up to the date of judgment and, therefore, the decisions in Texaco Nig. Ltd v. Okehinde  6 NWLR (Pt. 708) 224 and Kato v. CBN  6 NWLR (Pt. 607) 370 and others referred to on damages do not apply as the facts and circumstances are not the same with this case. He submitted that each case must be determined by the particular facts of the case and that the principle of stare decisis is applied to the factual milieu of cases, relying on Marc Ukaegbu & ors v. Mark Nwokolo  All FWLR (Pt. 466) 1852 at 1883 and Abayomi Babatnnde v. Pan Atlantic Shipping and Transport Agencies Ltd & ors  11 WRN 1 at 51 to 52.
The respondent’s counsel, referring to section 8(d) of the National Industrial Court Act, also submitted that this court has the powers to make a final or other order on such terms as will ensure that a case before it is determined on its merits and this the court has done. He emphasized that the National Industrial Court is a specialized court established to resolve labour and industrial disputes and to do this effectively it must not be tied to the rigid approach or principles of common law upon which the cases referred to by the applicant’s counsel were based because it will be difficult for the court to resolve labour matters on the merit. He defined merit as “being good and deserving praise” referring to the Oxford Advanced Learners Dictionary (7th Edition) at page 923 and counsel argued that the court’s orders were made on the merit because there was evidence on record that the principles of natural justice i.e. fair hearing was breached by the applicant’s disciplinary committee that investigated and heard the allegations against the respondent’s four members. He referred to the case of Shell Petroleum Development Co. Ltd v. Chief Victor Olanrewaju  All FWLR (Pt. 458) 208 at 222 where the’ Supreme Court held that the court must ensure that in the proceedings or investigation of a domestic panel culminating in an employee’s dismissal, the rules of natural justice are not breached; and that the risk of any prejudice is enough to find in favour of an employee who has been punished. Counsel submitted that the finding of breach of the right to fair hearing by the Industrial Arbitration Panel and this Court makes the orders of this Court one made on merit.
Referring to section 8(d) of the National Industrial Court Act 2006 he submitted that the court is empowered to make orders in any matter as it may think fit to ensure the determination on the merits of the matter in dispute and then reproduced section 14 of the National Industrial Court Act as follows:
The court shall, in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined
and all multiplicity of legal proceedings concerning any of those matters avoided.
He argued that the word ‘shall’ imposes a duty on this court in every cause or matter to grant to the parties all such remedies, the parties appear entitled to referring to Blacks Law Dictionary (8th Edition) at page 1407 for the definition of the word ‘shall’.
He submitted that the decisions referred to by counsel to by the applicant are not appellate decisions arising from the judgments of this court and none of the provisions of the National Industrial Court Act 2006 arose for consideration or were considered in those cases. He added that this court is not being asked to disregard the decisions of appellate courts but that those decisions do not apply to the present case and that the applicant ought to have referred to them during the hearing of the appeal to enable the respondent adequately reply. That the word “shall” in section 14 of the National Industrial Court Act is mandatory and once the court exercises this power as it has done based on the facts and circumstances of this case, such a decision cannot be said to be made without jurisdiction or be called a nullity and this court need not state in its judgment that it is making its orders based on section 14 of the Act. He argued further that by not reinstating or upholding the termination of the four staff, the court was plainly holding the balance of justice evenly in the appeal such that the respondent’s members would no longer be in the employment of the applicant, neither will the injustice meted out on them by the applicant go completely without a remedy. Counsel submitted that the days of technical justice are over as courts are enjoined to do substantial justice. He referred to Rt. Hon. Rotimi Amaechi v. INEC & ors  6 WRN 1 at 7 where Katsina-Alu JSC (as he then was) stated, ‘I ought not make an order which does not address the grievance of a party before this court’. He submitted that the orders of the court addressed the grievance of the respondent’s members who were denied their right to fair hearing by the applicant.
The respondent’s counsel then described the manner matters are referred to the Industrial Arbitration Panel. That by the provisions of section 8 of the Trade Disputes Act, trade disputes are referred to the Industrial Arbitration Panel as Terms of Reference by the Minister for Labour and are not prepared and filed by the parties in dispute as is the case in matters that come directly to the National Industrial Court or other courts. That this was the situation in the trade dispute between the parties in this case and that in view of the method of approaching the Industrial Arbitration Panel, the National Industrial Court Act 2006 has empowered this court also in section 19(d) as follows:
The court may in all other cases and where necessary make any appropriate order including –
(d) an award of compensation or damages in any circumstance contemplated by this Act or any Act of the National Assembly dealing with any matter that the court has jurisdiction to hear.
He argued that the key phrase in section 19 of the Act is ‘any appropriate order’ and, therefore, the award of compensation or damage to the respondent’s four members in its judgment in view of the finding of the Industrial Arbitration Panel and this court that the proceedings of the applicant’s disciplinary committee violated the principles of natural justice is an appropriate one made within the contemplation of the National Industrial Court Act particularly section 14. He argued that the onus is on the applicant to show otherwise and that where a court by law has final jurisdiction in certain matters and is by law conferred with or granted broad and expansive powers as the National Industrial Court under the Act, it is the duty of that court to exercise the power in all appropriate circumstances in the interest of substantial justice and this is not acting outside jurisdiction or recklessly, referring to the case Amaechi v. INEC, supra.
Replying to the argument that the appellant must be held to his claims, he submitted that this court has the wide jurisdiction to give consequential orders and to grant reliefs which the circumstances and the justice of a case dictate. That wherever justice demands it, this court is mandated to do justice without regard to technicalities as the goal and power of the National Industrial Court as provided in the Act can be summarized in the words of Lord Denning who once said ‘Let no man work out of our courts disappointed in the administration of justice’. Learned counsel stated that while the High Courts apply ‘common Law and equity’, the National Industrial Court is enjoined by section 13 of the National
Industrial Court Act to apply ‘law and equity and submitted that the term ‘common law’ is not the same as ‘law’. That this settles the issue as to what extent this court is bound to apply the common law principles in the cases referred to by the applicant’s counsel in deciding labour and Industrial relations disputes. That if the intention of the legislature is that this court should apply common law like the High Courts, it would have expressly stated so as what is not expressed cannot
be implied. He submitted that this court applied law and equity in making the orders because it considered them just and addressed the grievances of the parties.
The respondent’s counsel referred to the case of Mojeed Yesufu v. Madam Idiatu & anor  41 WRN 1 at 44 where the Supreme Court described the principles of equity as ‘recourse to principles of justice to correct or supplement the rigidity of common law…’ and submitted that by section 15 of the National Industrial Court Act which provides that where there is any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail, the rigid common law principles in the cases referred to by counsel for the applicant do not apply. He also submitted that by section 7(6) of the National Industrial Court Act, the court shall have “due regard to international best practices in labour or industrial relations”. That on the issue the applicant is complaining about, there is in existence a body of best practices and urged the court to take judicial notice of its various judgments where employers were ordered to pay wrongfully terminated staff instead of reinstatement as a best practice that has evolved in labour justice administration in the country. He cited Suit No. NIC/3/91 Kano State Investment and Properties Ltd v. National Union of Bank and Financial Institutions Employees delivered on 10n April 1992.
Finally, the respondent counsel submitted that in interpreting the various provisions of the National Industrial Court Act, 2006, the objective of the statute has to be considered and judicial interpretation must be construed to save a provision so as not to defeat the intention of the law. He referred to Elabanjo & anor v. Dawodu  50 WRN 79 at 185 and urged the court to dismiss the summons on notice for interpretation and the applicant ordered to comply with the judgment of this court delivered on the 14th July 2009.
Replying on points of law, the applicant’s counsel submitted that the following 6 issues of law arise for the determination of this court. The first issue is whether the address of the applicant does in fact comply with the rules of court, and whether even if it does not comply with the rule strictly, it is not a mere irregularity. On this issue learned counsel to the applicant conceded that the manner of writing the applicant’s brief is prosaic and does not follow the proper formal but went on to submit that Order 20 specifically applies to final address and not address in support of motions or summons which are not originating process. That Order 20 does not apply to this application for interpretation and setting aside of the court’s judgment because the application is a motion and is not by law called final address. That even if Order 20 applies to this application, the respondent’s submission that the applicant failed to raise issues for determination is misconceived because the rules of this court did not state that any part of the address must be titled Issues for Determination. The applicant’s counsel then submitted that even if the applicant did not comply with Order 20, it is a mere irregularity and is incapable of defeating the applicant’s application, citing State v. Ajie  11 NWLR (Pt. 678) 434 at 447 and XS (Nig) Ltd v. Taisei (W.A.) Ltd  15 NWLR (Pt. 1003) 533 at 588. He submitted also that the law is well established that the court will overlook the lapses of a bad brief so as not to punish the parties before it unduly, citing Odeleye v. Adepegba  5 NWLR (Pt. 706) 330 at 343 and Osanyinbi v. Sokenu  3 NWLR (Pt. 669) 170 at 180.
The second issue is whether the matter of interpretation of a judgment by the same court that granted the judgment can be caught by the doctrine of functus officio. The applicant’s counsel submitted that, it is a wrong statement of law by the respondent that this application must fail on account of the court being functus officio. That a court is never functus officio to stay execution of its own judgment where such judgment is given without jurisdiction and to set it aside, citing Sken Consult: Nig. Ltd v. Ukey  1 SC 6. lie also submitted that this court has jurisdiction to interpret its own judgment in the same suit, referring to Akio v. ACB Ltd  9 NWLR (Pt. 672) 264 at 299, A.S.C. Ltd v. Akib  13 NWLR (Pt. 997) 333 at 352 and Olurotimi v. Ige  8 NWLR (Pt. 311)257 at 274.
The third issue raised by the applicant’s counsel is whether a suit for interpretation must by law be by an originating process. The applicant’s counsel submitted that there is no legal basis for the respondent’s contention that the summons on notice for interpretation should be by an originating process because the applicant’s notice is brought pursuant to section 15(l)(b) of the Trade Dispute Act and the word used is an ‘application to the National Industrial Court’. That the word application is always used to depict interlocutory applications and never an originating process which is issued and sealed by the court as against a motion.
The fourth issue raised is whether the intention of the National Industrial Court Act is to create a new jurisprudence on labour matters outside the existing law on master-servant employment contracts or the principles of stare decisis. The applicant’s counsel submitted that matters of employment contract and remedies for its breach are matters of substantive law and cannot be expanded or limited by the National Industrial Court Act but can only be interpreted by the court. That the National Industrial Court cannot create a new set of contract laws but only interpret existing ones developed over the years by the High Courts, the Court of Appeal and the Supreme Court ‘within which hierarchy the National Industrial Court must find its place and comply with the established rule of stare decisis.’
The fifth issue raised by the applicant is whether the power given by the court under section 14 of the National Industrial Court Act permits the court to give any order whatsoever. The applicant’s counsel submitted that section 14 of the National Industrial Court Act does not permit the court to give ‘any order it fancies’ neither does it allow the court to ‘go on a voyage of its own’ which would be to ‘grossly defraud the law’. That any power or discretion must be exercised judicially and judiciously according to extant laws. He referred to J.P. v. INEC  12 NWLR (Pt. 886) 140 at 146, Ngwu v. Omtigho  13 NWLR (Pt. 636) 512 and Eronini v. Iheuko  2 NWLR (Pt. 101) 46 at 60.
The sixth issue raised is whether the applicant’s summons amounts to asking the court to sit as an appellate court over its own judgment. .Counsel argued that the application is brought under section 15 of the Trade Disputes Act for interpretation, Order 30 of the National Industrial Court rules for stay of execution and under the inherent jurisdiction of the court for setting aside the reliefs given without jurisdiction. That the court assumed first a jurisdiction to hear and grant a remedy in tort of libel or defamation of character, secondly a jurisdiction to hear and treat the issue of breach of natural justice rules as a substantive relief and a jurisdiction to award damages for a constitutional breach of fundamental human rights which are three jurisdiction this court does not have. That even if it ordinarily has such jurisdiction it could not have exercised same since the prescribed procedure for bringing such claims was not complied with and since they did not form the claims or reliefs sought by the respondent in the first place. The Applicant’s counsel concluded by stating that this is the applicant’s case which ‘is simple’.
We have carefully considered the submissions of learned counsel for both parties. It is pertinent at this stage to comment on the language and attitude towards this Court and the Court of Appeal by Mr. Andy Akporugo (Jr.), a senior counsel in the chambers of G, M. Ibru & Co., representing the applicant, who prepared the applicant’s written address. We note that with his consistent use of the words ‘common sense’ and ‘commonsensical’ in his bid to substitute his own interpretation for that of the Court and to give guidelines to this Court on grammatical construction and interpretation of
its judgment, he is in effect insinuating and/or saying that this is a Court made up of Judges who lack common sense, He did not stop at that but went on to describe in various derogatory terms the actions and judgment of this court sought to be interpreted. An example or two will suffice. For instance, he described the said judgment as: ‘ambiguous, vague, illogical, contradictory, absurd and down-right illogical’ and ‘ludicrous’. This is aside from his accusation that this court ‘[picks] and [chooses] which authority it fancies’. To reinforce his viewpoint regarding the absence of common sense within the judges of this Court, he had the audacity to even conclude his submissions with the statement that – …this is the applicant’s case which ‘is simple’.
He did not end his onslaught on this court but went on to state that he knows as ‘a fact’ that the Court of Appeal ‘acted in ignorance” when it gave its decision in the case of British Airways v. Makanjuola, supra. The language and attitude of Mr. Andy Akporugo (Jr.) shows absolute disregard and utter contempt for the Justices of the Court of Appeal and the Judges of this Court. His language and attitude is lacking in the minimum standard of decorum expected of a senior member of the bar who has junior counsel under his tutelage. We are at a loss as to what, if anything at all, he has to teach and instruct them. We, therefore, urge and hereby call upon the Legal Practitioners Disciplinary Committee to investigate this matter and mete out appropriate disciplinary action against Mr. Andy Akporugo (Jr.).
We now begin with the procedure for bringing a summons on notice for interpretation. The judgment sought to be interpreted is a final judgment delivered by this court on the 14lh July 2009 in Suit No. NIC/9/2008 in a trade dispute matter referred to it by the Minister for Labour for adjudication after both parties had objected to the award of the Industrial Arbitration Panel (TAP). We agree with the respondent’s counsel that this court has become functus officio in respect of Suit No. NIC/9/2008 having delivered a final judgment and also by virtue of the provisions of section 14 (2) (a) and 15(l)(b) of the Trade Disputes Act CAP T8 LFN 2004 under which this summons is brought. The relevant sections are reproduced as follows:
14(2) The award of the National Industrial Court shall be binding on the employers and workers to whom it relates –
(a) as from the date of the award or such date as may be specified in the order; 15(1) If after an award of-
(b)The National Industrial Court has become binding on the employees and workers to whom it relates, any question arises as to the interpretation of the award, the Minister or any party to the award may make an application to the National Industrial Court for a decision on that question.
An action for interpretation of this court’s judgment is a fresh action because the parties are bound by the judgment already delivered. In Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees v. Agricultural and Allied Workers Union of Nigeria unreported Suit No. NIC/17M/1995 delivered on April 8, 2009, this court held that –
…in an interpretation action the cause of action is fresh and so can be decided on the law as at the date it was filed. There is ample justification for this line of reasoning in section 17 of the Trade Disputes Act Cap. 432 LFN 1990. The truth of the matter is that all actions seeking to activate the interpretation jurisdiction of this court are fresh actions and so are ordinarily treated on the basis of applicable laws as at the time they were filed.
And in the case of Comrade Olu Solademi & ors v. Comrade E. C. Edeji & ors unreported Suit No. NIC/12M/2003, the
ruling of which was delivered on July 6, 2009,
this court held that –
although interpretation disputes are usually treated as fresh disputes (see section 17(3) of the TDA 1990 and the case of Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees v. Agricultural and Allied Workers Union of Nigeria unreported Suit No. NIC/17M/1995 the ruling of which was delivered on April 8, 2009), they are not required to go through the dispute resolution processes of Part I of the TDA as argued by the respondents. This is because they are statutorily caught up under the original jurisdiction of this court as can be seen under sections 14 and 20 of the TDA 1990.
A summons on notice for interpretation must, therefore, bear a new suit number with the parties properly referred to as applicant and respondent. It is an originating action and cannot be listed or referred to using the earlier Suit No. NIC/9/2008 in which the parties were referred to as appellant/respondent and respondent/cross appellant/applicant. Furthermore, section 12(1) of the NIC Act 2006 also provides that –
The jurisdiction vested in the Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this Act or any other enactment or by such rules and orders of court as may be made pursuant to this Act or, in the absence of any such provisions, in substantial conformity with the practice and procedure of the court existing immediately before the commencement of this Act.
The practice and procedure of this court in respect of interpretation of its judgments immediately before the commencement of this Act was that it was commenced as an originating action by the applicant. This is the procedure the court will continue with and in line, with this, the court registry has listed this matter as Suit No. NIC/LA/21A/2009 with the parties appropriately referred to as applicant and respondent. We note that there is no specific provision, in the rules of this court on the procedure for filing a notice for interpretation and, therefore, cannot attribute non-compliance on the part of the applicant on this issue. However, on the applicant’s failure to raise issues for determination in its written address, we find that there has been non-compliance with the provisions of Order 20 Rule 2(iii) & (iv) of the Rules of this court; but we are of the view that such failure is simply inelegant and bad brief writing by counsel which should not result in the applicant being shut out at this stage.
As stated earlier, the applicant’s summons on notice for interpretation is predicated upon the following fact deposed to in paragraph 4 of the supporting affidavit –
That the respondent/cross-appellant/applicant does not understand the purport of the judgment and intend to contest same.
The Blacks Law Dictionary 8th edition defines ‘contest’ at page 337 as ‘to litigate or call into question; challenge’. This
clearly means that the applicant is challenging the entire judgment of this court delivered on the 14th July 2009. Now, in section 15(l)(b) of the Trade Disputes Act LFN 2004 under which this summons on notice for interpretation is brought and already reproduced above, the operative words used are ‘has become binding on the employees and workers’. The same dictionary at page 178 defines ‘binding’ as ‘(an order) that requires obedience’. The applicant’s resolve to contest the judgment of this court and pray for an order staying the execution of the judgment is a clear indication that it does
not consider the judgment as binding on it which is in flagrant disobedience to the provisions of section 14(2)(a) of the Trade Disputes Act. It is our firm view that a party who has accepted a judgment as binding on it will take steps towards its implementation and if any questions arise in the implementation, may approach the court for interpretation where it believes there is ambiguity or incongruity, or where a party seeks clarification or desires to have the Court make clearer its intendment in the judgment. When this is the case, it does not involve re-writing the judgment. This is what is envisaged in the provisions of section 15(l)(b), The applicant is contesting the entire judgment of the court; how then can it avail itself of section 15(l)(b)?
A party contesting the jurisdiction of the court in a matter cannot activate the interpretation jurisdiction of the court in the same matter. To activate the interpretation jurisdiction of this court, the party must be prepared to implement the said judgment. In fact, it is when the judgment is being implemented that if problems arise as to the exact ambit of the implementation of the judgment, which requires clarification, that this court may then be approached for interpretation. The interpretation jurisdiction of this court cannot be activated or used in the ploy of having this court sit on appeal over its decisions, which is what the applicant really wants this court to do by the instant application. We, therefore, hold that the provisions of section 15(l)(b) is not available ti¬the applicant who is contesting this court’s judgment and praying for a. stay of execution of same.
The applicant is also praying for an order setting aside the judgment on the grounds that this court does not have the jurisdiction to grant the reliefs in the judgment. This is a trade dispute which this court has been given jurisdiction to hear and determine. Several issues were referred to this court for adjudication by the Honourable Minister responsible for Labour. One of the issues canvassed by both parties at the Industrial Arbitration Pane and in this court was the trial of the respondent’s members. The gravamen of this matter is the finding by the TAP and this court that the applicant deliberately and in utter disregard and contempt of the respondent’s members’ constitutionally guaranteed right to fair hearing, constituted its disciplinary committee which was found to be tainted with bias to try them on an allegation of fraud.
Despite the letters written by the respondent’s counsel to the applicant that the disciplinary committee was biased and that its members who had been accused of a crime be handed over to the police, the applicant refused to heed to wise counsel. They were all found guilty of unsubstantiated fraud by the committee, which also recommended their dismissal which was then commuted to termination by the applicant. This is the background to the holding at page 14 of our judgment that “such wrongful termination on the grounds of unsubstantiated fraud carries with it a stigma on the character of the four affected persons for which they shall be entitled to substantial damages far beyond one month’s salary in lieu of notice”, which Mr. Andy Akporugo (Jr.), the applicant’s counsel, has now chosen to base his distorted argument and submission that this court assumed jurisdiction in a tort of defamation in a labour suit and granted reliefs in respect same.
This type of conduct by counsel is despicable and cannot advance the course of justice. Indeed, this court has a duty not to close its eyes to this perfidy, which occurred at the trial of the respondent’s members. The Supreme Court has given directions on how a court is to act and what it is to do when faced with a breach of the right to fair hearing in the following cases: Adigun v. AG, Oyo State  2 NWLR (Pt. 5) 197 and Shell Petroleum development Company v. Chief Olanrewaju  All FWLR (Pt. 458) 208. More specifically, the Supreme Court per Fabiyi, .TSC in Victino Fixed Odds Ltd v. Joseph Ojo & ors  3 MJSC (Pt. IV) 80 at 93 para C – D had this to say –
It should be further stated that on a breach of the right of fair hearing, an appellate court does not go to the reasons for its beach or the consequences of same. It has no alternative but to allow the appeal against the decision and treat it as though there has been no hearing at all. An appellate court is bound to follow this course in the hearing of the appeal.
We hold that by the provisions of sections 14 and 19(d) of the NIC Act 2006 this court has been legally empowered to
grant all the reliefs it did in the judgment sought to be interpreted.
We find that by this summons on notice for interpretation, together with the arguments and submissions contained in the applicant’s written address, it is clear and certain that it wants and is surreptitiously asking this court to sit on appeal over its final judgment. Counsel to the applicant has not been able to show us which law empowers this court to do this. Indeed, it is our considered view that this summons on notice for interpretation is simply an attempt by the applicant to get this court to re-write the judgment already given on the 14th July 2009 and change the reasoning and character of the judgment completely under the guise of interpretation. The applicant’s counsel has derogatorily stated that the National Industrial Court can only interpret existing laws and ‘must find its place’ within the hierarchy of the High Court, the Court of Appeal and the Supreme Court. Incidentally, and may be unknown to counsel, the National Industrial Court Act 2006 has already determined the place of this court in the hierarchy of courts in the country. We hold that this summons on notice for interpretation by the applicant is stratagems to have this court sit on appeal against its judgment delivered on the 14th of July 2009. The powers given to this court does not extend to sitting on appeal over its own final decisions; for good or bad, a court is entitled to give its judgment even if it turns out to be a bad one.
The respondent’s motion dated 14th August 2009 in which it sought an order that the applicant deposit the judgment debt into an interest yielding account pending the determination of this suit was not argued because in the priority of processes filed, the summons on notice for interpretation was first in time. The respondent’s motion has now been overtaken by events and is consequently struck out.
For all the reasons given above, the prayers contained in the applicant’s summons on notice for interpretation are hereby refused. The application for stay is also refused. This suit is, therefore, dismissed in its entirety with cost in the sum of N50,000.00 awarded to the respondent against the applicant and which must be paid within seven days of this instant judgment. The applicant is ordered to comply with all the orders contained in the judgment of this court delivered on the 14lh July 2009 in Suit No. NIC/9/2008 within seven days of this instant judgment.
Judgment is entered accordingly.
Hon. Justice B. B. Kanyip
Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim